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Commonwealth v. Perez

Superior Court of Pennsylvania

October 29, 2014


Submitted August 11, 2014

Appeal from the PCRA Order of the Court of Common Pleas, Philadelphia County, Criminal Division, No(s): CP-51-CR-0802241-2001 and CP-51-CR-1001271-2001. Before BRIGHT, J.

Janis Smarro, Philadelphia, for appellant.

Hugh J. Burns, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, SHOGAN and OTT, JJ. Judge Bowes joins the Opinion. Judge Ott Concurs in the Result.


Page 345


Appellant, Guillmo (Guillermo) Perez, appeals from the order denying his petition for collateral relief filed pursuant to the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S. § § 9541-9546. We affirm.

The facts and procedural history of the underlying criminal matter were summarized by another panel of this Court, as follows:

Mr. Levaughn Nesbitt testified he had been in an abandoned station wagon in a lot on Firth and Ninth Streets in Philadelphia with Appellant and the victim on June 1, 2001, just before 11:00 p.m. N.T., 4/15/03, at 103-04. The victim sat at the driver's seat, Appellant sat in the front passenger seat and Mr. Nesbitt sat in the back seat on the driver's side. Id. at 105. Mr. Nesbitt was smoking marijuana in the vehicle and shared some with the others, who had been smoking a " wet" [a marijuana cigar soaked in embalming fluid] when he got in the car. Id. at 106-107. Mr. Nesbitt witnessed Appellant pull a black gun " out of nowhere," hold it in his hand and state he was " going to use it," after which the victim asked him to put the gun away, and Appellant complied. Id. at 107-108, 121. Mr. Nesbitt asked the victim to accompany him to the latter's grandmother's home to watch the remaining portion of a 76ers basketball game. The victim stated he would go there after he finished his " wet." Id. at 108.
Ms. Shakira Morse, the victim's sister, testified she was visiting her grandmother's home on June 1, 2001, when Appellant came to the door and asked to speak to the victim. Id. at 125-126. Appellant asked the victim for something, and the victim told Appellant to get it from " Roskoe." Id. at 126. Appellant left and returned in about five minutes. Id. at 126. The men spoke again after which Appellant left the home, and the victim followed about five minutes later. Id. at 126-127. After approximately ten minutes had passed, Mr. Nesbitt came to watch the basketball game, and about fifteen minutes later, Ms. Morse heard gunshots. Id. at 127.
Mr. Ismael Roman, the block captain, testified he lived at 821 East Firth Street, and on the evening of June 1, 2001, he was home with his family when he heard one gunshot followed shortly thereafter by two more. Id. at 68-69. When Mr. Roman looked out his window, he saw Appellant trying to pull the gun's slide forward to fire it while crossing back and forth in the middle of the street in front of Mr. Roman's car. Id. at 72. He observed Appellant's second shot hit the pavement and the third hit Mr. Roman's automobile. Appellant then walked toward a vacant, littered lot located behind the houses in the 2500 Block of North Ninth Street. Id. at 68-76.

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Ms. Regina Hunter testified on the date of the incident she lived in a home at 2509 North Ninth Street. While she was watching the 76ers basketball game, Appellant broke through the locked back door of her home and tore apart her kitchen. He was holding something, but Ms. Hunter could not positively identify the object. Id. at 89-92. He was speaking like he was " crazy," though he complied with Ms. Hunter's order to leave through the front door. Id. at 92, 98.
Detective Timothy Bass testified that on the evening of June 1, 2001 he was sent to the 800 Block of West Firth Street, where he recovered two, fired cartridge casings and a hand gun among refuse in a vacant lot. Id. at 37-39. He also recovered another cartridge casing from an abandoned, brown Chevrolet station wagon. Id. at 35. The passenger front window had been shattered and both the driver's door and front passenger doors were ajar. Id. at 46-48.
Officer Demetrius Heggs testified he was in uniform and responded to a call at Ninth and Firth Streets on June 1, 2001. Id. at 131-132. Officer Heggs proceeded southbound on Ninth Street and came to the corner of Ninth and West Cumberland Streets where Mr. Roman provided him with a brief description of a male he saw firing a gun. Id. at 132-133. He observed a commotion at Appellant's grandmother's home; she explained he had burst in and gone upstairs. Id. at 133-134. Officer Heggs noticed Appellant walking down the stairs with a " large wound on his head." Id. at 135-136. Appellant was speaking unintelligibly and appeared to be under the influence of drugs. Id. at 136-137, 142. Appellant walked out of the front door and traveled on foot eastbound on Cumberland Street from Ninth Street toward Eighth Street. Id. at 137. Officer Heggs called for backup as he followed Appellant in his patrol car. Id. Officer Heggs found himself at the scene of the homicide where he discovered a black male slumped over the steering wheel leaning towards the passenger side. Id. at 139. He also noticed a vehicle parked across the street from the station wagon with the windows shot out. Id. at 142.
Officer Edwin Correa testified he backed up [O]fficer Heggs and first saw Appellant on the 2500 Block of Eighth Street after Mr. Roman directed his attention to Appellant. Id. at 150. Officer Correa identified himself as a police officer at which time it appeared to him that Appellant was going to flee. Officer Correa and his partner quickly walked over to Appellant, frisked him for weapons and placed him in their vehicle. Id. at 151-52. Appellant repeatedly exclaimed " Oh, God, please forgive me for what I did." Id. at 152.
Dr. Ian Hood testified the victim was pronounced dead at 11:50 p.m. N.T., 4/16/03, at 50. Dr. Hood performed an autopsy the next day at which time he observed two gunshot wounds on the victim's body--one entrance wound in his chest and one exit wound in his back. These wounds caused the victim's death. Id. at 49-60.
On April 17, 2003, Appellant was found guilty of [third degree murder, carrying a firearm without a license, and carrying a firearm on a public street in Philadelphia] and was sentenced on June 17, 2003. On June 24, 2003, Appellant filed a Post-Sentence Motion which the trial court denied following a hearing on September 9, 2003. On April 28, 2004, Appellant filed a petition pursuant to the Post Conviction Relief Act (PCRA), pro se. On October 14, 2004, counsel was

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appointed and filed an amended PCRA petition. On December 7, 2006, Appellant's appeal rights were reinstated nunc pro tunc, and counsel was permitted to withdraw on December 21, 2006. On January 4, 2007, current counsel entered his appearance on behalf of Appellant and filed a Notice of Appeal on January 10, 2007.

Commonwealth v. Perez, 76 EDA 2007, 954 A.2d 40 (Pa. Super. filed May 30, 2008) (unpublished memorandum at 2-6) (footnotes omitted). That panel affirmed the judgment of sentence. Id. at 10. The Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on October 23, 2008. Commonwealth v. Perez, 599 Pa. 681, 960 A.2d 455 (Pa. 2008). On April 6, 2009, the United States Supreme Court denied Appellant's petition for certiorari. Commonwealth v. Perez, 556 U.S. 1170, 129 S.Ct. 1915, 173 L.Ed.2d 1066 (2009).

On June 24, 2009, Appellant filed a PCRA petition and the court appointed counsel. On June 11, 2013, current counsel filed an amended petition and, on September 3, 2013, the Commonwealth filed a motion to dismiss the petition. After counsel filed a reply to the Commonwealth's motion, on October 1, 2013, the PCRA court filed a dismissal notice pursuant to Pa.R.Crim.P. 907. On ...

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